CIC: an amount of 18% to 20% cannot be construed as substantial financing; the ‘Population Services International (NGO) New Delhi’ will not fall within the definition of ‘Public Authority’ as defined under section 2 (h) (d) (ii) of the RTI Act

ORDER

1. The appellant is present for the hearing along with Shri Hans Lal. The respondent is also present and represented by Ms. Yasmin Zafar (Advocate), Shri Ravindra (Senior Manager,PS) and Ms. Pooja Singh (Manager, PS).

2. The present appeal has been remitted by the Hon'ble High Court of Delhi vide judgement in writ petition (c) 3422/2012 dated 16.9.2013 wherein it was held as under:

"3. Admittedly, no direct funding from the appropriate Government was received by the petitioner. The only question which arises for consideration would be as to whether the petitioner received any indirect substantial funding from the appropriate Government or not. The answer to this question, in my view, can be given only on examining the legal status of the organizations/societies from which the funding was received. In case the petitioner received substantial fundings from the associations which are fully or atleast substantially funded by the appropriate Government that, in my view, would be a case of the petitioner being funded indirectly by the appropriate Government. The exercise as to whether the organizations and societies from which the funding was received by the petitioner were wholly or substantially funded by the appropriate Government or not cannot be undertaken in a writ petition. Similarly, the question as to whether the funding received by the petitioner from such organizations/societies can be said to be a substantial funding or not is also a matter which cannot be gone into a writ petition. All these, in my view, are the matters which need to be examined by the Commission.

4. Hence, the impugned order dated 23.4.2012 is set aside and the matter is remitted back to the Commission to decide in the light of this order as to whether the petitioner is substantially funded either directly or indirectly by the appropriate Government or not. The parties shall appear before the Registrar of the Commission on 27.9.2013."

3. The present hearing was conducted in continuance of the hearing dated 5.2.2014 wherein directions were issued to the respondent to file written submissions within four weeks with a copy to the appellant indicating clearly the legal status of all the local and international organisations from whom the funds have been received from 2009 till date along with complete details including the name, address and contact number of funding agencies. It was also directed that details along with percentage of amount of donation, funds received from Government or from other agencies and break up of grants received and the expenditure from 2009-2013, may also be provided.

4 The respondent has filed written submissions dated 4.4.2014 wherein various facts and figures have been brought on record, part of which is being reproduced as under: Local and International Private Grants (INR) 2009 82.00% 506,646,136 2010 80.00% 511,527,038 2011 79.00% 640,248,433 2012 77.00% 558,707,540 2013 92.00% 578,799,811 National and State Government Grants (INR) 2009 18.00% 111,697,146 2010 20.00% 130,777,428 2011 21.00% 169,730,330 2012 23.00% 167,584,680 2013 8.00% 50,326,656

5. The respondent contends that they are not a public authority for the purpose of section 2 (h) (d) (ii) of the RTI Act as they are not being "substantially financed" by the appropriate government. They further submit that the funds provided by the Government & its agencies against specific projects are not substantial in nature and therefore not covered under the definition of Public Authority under the RTI Act. The appellant on the other hand submits that the respondent should be considered as public authority for the purpose of RTI Act as it has received some amount of funding from the government.

6. In the matter of Thalappalam Ser. Coop. Bank Ltd. and Ors. Vs. State of Kerala and Ors. (Civil Appeal No. 9017 of 2013 arising out of SLP (C ) No. 24290 of 2012) the Hon’ble Supreme Court vide order dated 7.10.2013 has held as under: "38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of of the cooperative sector like deposit guarantee scheme, a scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as ‘substantially financed” by the State Government to bring the body within the fold of “public authority” under section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; (d) (i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority Under section 2 (h) (d) (i).”

7. The Commission is of the view that an amount of 18% to 20% cannot be construed as substantial financing. Moreover, as per the data provided, only 8% was contributed from Central and State Government in the year 2013. The Hon'ble Supreme Court has also held that "unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist". The Commission is of the view that the amount contributed by the Central and State Government is not substantial in the present case so as to qualify as “substantial financing”.

8. We, therefore, hold that “Population Services International (NGO) New Delhi” will not fall within the definition of “Public Authority” as defined under section 2 (h) (d) (ii) of the RTI Act.

        Rajiv Mathur                                                      Sushma Singh

Information Commissioner                          Chief Information Commissioner

Citation: Shri Rajesh Dhiman v. Population Services International (NGO)in Case No. CIC/SG/A/2011/003380/SS